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Blue Fox Property Group Pty Ltd v Gledhill[2023] QCAT 349

Blue Fox Property Group Pty Ltd v Gledhill[2023] QCAT 349

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Blue Fox Property Group Pty Ltd & Ors v Gledhill & Anor [2023] QCAT 349

PARTIES:

BLUE FOX PROPERTY GROUP pty ltd, Karen Venz & wesley vENZ

(applicant)

v

Danielle lyn gledhill & nicolas alan garcia pieragostinI

(respondent)

APPLICATION NO/S:

T25/23

MATTER TYPE:

Residential tenancy matters

DELIVERED ON:

4 September 2023

HEARING DATE:

23 August 2023

HEARD AT:

Coolangatta

DECISION OF:

Adjudicator Alan Walsh

ORDERS:

  1. 1.On the Application

The Respondents Danielle Lyn Gledhill and Nicolas Alan Garcia Pieragostini pay the Applicants Wesley Venz and Karen Venz $110.00 for general cleaning, $195.00 for oven cleaning, and $146.30 for repairs, in total $451.30, by set off against the liability referred to in Order 2.

  1. 2.On the Counterapplication

The Applicants Wesley Venz and Karen Venz pay the Respondents Danielle Lyn Gledhill and Nicolas Alan Garcia Pieragostini $3,684.13 being for compensation in the amounts of $2,281.43 for the rent differential on new rental premises limited to the balance of the term of the tenancy for 8B Cornwall Drive, Elanora between 10 April 2023 and 14 July 2023, $704.00 for removalist costs, $550.00 for food loss, and $600.00 for compensation for electrical outages, less $451.30  for the liability referred to in Order 1.

  1. 3.Filing Fees

The parties will bear their own cost of the filing fee for the Application and the Counterapplication respectively.

  1. 4.Bond

The Residential Tenancies Authority pay the bond of $2,400.00 to Danielle Lyn Gledhill and Nicolas Alan Garcia Pieragostini.

  1. 5.Other

The Application of Blue Fox Property Group Pty Ltd and the Counterapplication of Danielle Lyn Gledhill and Nicolas Alan Garcia Pieragostini against Blue Fox Property Group Pty Ltd are dismissed.

CATCHWORDS:

CIVIL LAW – CIVIL TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where tenants rented dual occupancy premises on the Gold Coast for a fixed term – where persistent power outages over prolonged period – where tenants gave notice of intention to leave without ground during fixed term tenancy and left – whether notice effective to end tenancy early

LANDLORD AND TENANT – TERMINATION OF RESIDENTIAL TENANCY IN QUEENSLAND – where tenants ascertained impediment to dual occupancy of residential premises – where tenants issued breach notice for impediment – where breach notice invalid for lack of detail – whether tenancy ended when tenants left or upon expiry of the fixed term of the lease or not – statutory principles

CIVIL LAW – CIVIL TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – RENT AND COMPENSATION – where tenants broke lease – where property not relet – where impediment prevented reletting – where owners applied for break lease fee and lost rent – whether mitigation possible – whether owners mitigated loss – where owners claimed cleaning and repair costs on exit – where tenants counterclaimed for compensation for loss and damage – where damages for personal injury claimed – whether that claim within QCAT minor civil dispute jurisdiction

Local Government Electoral and Other Legislation (Expenditure Caps) Amendment Act 2023 (Qld), s 576

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 10, s 18, s 70, s 181, s 183, s 185, s  277, s 308, s 310, s 325, s 327, s 362, s 416, s 417, s 419, Schedule 1 Part 2 Division 1 – Notice period

Astill Legal Group Pty Ltd & Anor v Centrepoint Real Estate Pty Ltd t/as First National Centrepoint & Ors [2022] QCAT 399

Barnes v Queensland National Bank Ltd (1906) 3 C.L.R. 925

Bates v Horsnell [2011] QCATA 329

Clarke v Japan Machines (Australia) Pty Ltd [1983] QSCFC 52

Cordery v Century 21 – Investment Focus [2013] QCATA 218

Evans v Saarman [2013] QCATA 58

Fox v Jolly (1916) 1 A.C.

Hadley & Anor v Baxendale & Ors [1854] EWHC J70

Till and Till ATF the Till Family Trust t/as Mt Cotton Truck Hire v Rose [2015] QCATA 173; Till & Anor v Rose [2016] QCA 127

APPEARANCES & REPRESENTATION:

Applicant:

Mr Venz, Mrs Venz, Ms Littlemore of Blue Fox Property Group Pty Ltd

Respondent:

Ms Gledhill and Mr Pieragostini

REASONS FOR DECISION

The Dispute - Facts

  1. [1]
    The facts distilled from over 300 pages of documents filed by the parties and their oral evidence in this residential tenancy dispute are as follows.

Tenancy Agreement

  1. [2]
    Blue Fox Property Group Pty Ltd, on behalf of property owners Wesley Venz and Karen Venz, rented out part of their house at 8 Cornwall Drive in Elanora to Danielle Gledhill and Nicolas Pieragostini in a back-to-back residential tenancy lease for a second fixed term commencing 15 July 2022 to end on 14 July 2023 at a rent of $600 per week. Included in the rent for the second term was the supply and cost of water, electricity, and internet services. The tenancy agreement stated the address of the tenancy as 8B Cornwall Drive.
  2. [3]
    The premises numbered 8 and 8B Cornwall Drive were at the time under the one roof, that is – they were in the term of the lease two parts of the same house, separated by a permanently locked door with soundproofing behind blocking a passageway. The owners lived in 8 Cornwall Drive. Though not otherwise relevant, I note for contextual completeness that the structure described as 8A Cornwall Street is an adjacent standalone shed structure separately occupied at the time by other members of the Venz family.

Problems

  1. [4]
    The tenancy of 8B Cornwall Drive was uneventful during the first fixed term, however problems occurred from September 2022 during the second fixed term. Ms Gledhill and Mr Pieragostini experienced recurrent, sometimes prolonged, electrical outages. Despite repeated visits, the owners’ electrician could not identify the cause of the problem to rectify it, however the source was eventually found and resolved by the owners’ electrician in January 2023. By that time, rather than risk further disruption of their lives the tenants had looked for a tenancy elsewhere and decided to leave before expiry of the fixed term of the lease and they gave notice to that effect. It is convenient to summarise here the statute law that applies in that circumstance.

Notice of intention to leave without ground (NITLWOG) – Statutory provisions

  1. [5]
    Under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the RTRAA), a tenant may issue a Notice of intention to leave premises stating a handover day for returning vacant possession[1] to a lessor without stating a ground for the notice[2] but, if issued during the term of a lease for a fixed term lease, the required notice period is the later of 14 days or the day the agreement ends.[3] The Notice may be given at any time[4] before the end of the fixed term of the agreement[5] and is not ineffective merely because the handover day is earlier than the day the term ends unless[6] the minimum notice period for the notice must not end before the day the term ends.[7]
  2. [6]
    Where ineffective to end a lease early, a NITLWOG does not end the lease on the date of the handover day – even though the tenant has left and returned vacant possession to the owner as intended. Section 362(1) of the RTRAA applies where a lessor incurs “loss or expense” (b) because of a “tenant’s abandonment of premises” or (c) “another act or omission of the tenant”. Section 362(3)(a) requires that a lessor must act reasonably in that circumstance, that is – “take all reasonable steps” to mitigate loss or expense and, by section 362(3)(b), is not entitled to receive compensation for any loss or expense that could have been avoided by taking the steps.

Tenants NITLWOG

  1. [7]
    Ms Gledhill and Mr Pieragostini issued a Form 13 Notice of intention to leave without ground to the owners’ agent on 3 March 2023 for a vacate date of 9 April 2023, by which date they left to take up a new fixed term tenancy elsewhere at a somewhat higher rent of $770.00 per week from 28 March 2023 to 26 March 2024. The owners and (then) tenants agree in these proceedings that Ms Gledhill and Mr Pieragostini broke the lease of 8B Cornwall Street in doing so. Also not in dispute is that they paid the rent up to and including 8 April 2023, but not afterwards. What is in dispute is whether the owners could, and did, take steps to mitigate their loss. Suffice presently to say that, by raising a town planning non-compliance issue with the local Council which precipitated an investigation, the tenants made it impossible for the owners to mitigate their loss by advertising the property for reletting. I will explain why in more detail later.
  2. [8]
    A lessor’s duty to mitigate loss is breached when an owner fails to take mitigation steps, in which event the tenant is not liable for the owner’s associated rent loss. Implicitly, the duty assumes that it is lawful to relet the premises. The corollary is that, where there is a legal impediment not caused by the tenant that prevents the property being relet, the owner cannot mitigate the rent loss and, involuntarily or otherwise, breaches the duty. Rent lost cannot be recovered from the departing tenant in that circumstance.

Tenants Form 11 Notice to remedy breach (NTRB)

  1. [9]
    On 31 March 2023, after making enquiries with the Gold Coast City Council as to whether 8B Cornwall Street complied with local government town planning law, Ms Gledhill and Mr Pieragostini issued a Form 11 Notice to remedy breach to the agent notifying: “Breach of section 181 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) and Division 6, condition 18 of the Lease”. The date by which the breach had to be remedied was 7 April 2023. Section 181(1) of the RTRAA requires that a Lessor ensure there is no impediment to occupation as a residence but, in terms of sub-section (2), applies “only to legal impediments the lessor knew about, or ought reasonably to have known about, when entering into the agreement.” Condition 18 of the standard terms of the lease is in words to the same effect.

Statutory Requirements for NTRB

  1. [10]
    Section 310 of the RTRAA authorises a tenant to issue a Form 11 Notice in the belief on reasonable grounds of a lessor’s breach. Section 325 requires that the Notice be in the approved Form. It is published on the Residential Tenancies Authority website requires insertion of the “Details of the breach.” The breach must be particularised in the “details” so that the recipient knows what exactly must be done to remedy it.[8] The question is whether the tenants’ Form 11 NTRB was valid.

Tenants NTRB invalid

  1. [11]
    The Notice to remedy breach did issue in the approved form but it did not particularise, or even summarise in some brief way, the facts constituting the breach. It was invalid for that omission.[9] It is not sufficient simply to refer, without more, to the section of an Act or a term or condition of a tenancy agreement allegedly breached.

Impediment – Cause of action/Defence

  1. [12]
    Invalidity of the Form 11 aside for the moment, the existence in fact and at law of a serious impediment to occupation of a residence under a residential tenancy agreement in Queensland that is established by evidence in QCAT legal proceedings may still provide a defence to a claim by a lessor, for example – for rent. It may also provide a tenant with a right of action for compensation for breach of the RTRAA and the standard terms of a tenancy agreement.

The impediment

  1. [13]
    The physical separation of the dwelling house into parts 8 and 8B for dual occupancy comprising two dwellings in the one residence under the same roof at some stage before the commencement of the tenancy of 8B was not approved by the Gold Coast City Council or a private certifier.
  2. [14]
    This is evidenced by a Show Cause letter of the Gold Coast City Council issued to the owners dated 18 April 2023[10] following a “compliance inspection” on 6 April 2023 at the instigation of the tenants. The letter, signed by a Development Compliance Supervisor Planning (South) on behalf of the Chief Executive Officer, observed (in 2(a) on the first page) that modifications had been made to the primary dwelling to create a second habitable dwelling identified as ‘8b Cornwall Drive”. In 2(b), the letter observed that modifications to the primary dwelling included the installation of additional bathroom facilities, kitchen facilities, and liveable areas. At [7] on the first page of the letter, Council said that a search of Council records indicated that no development application had been submitted or development approval given for the premises to be used for the purpose of Multiple dwelling and, at [8] on the second page, that pursuant to section 165 of the Planning Act, a person must not use the premises unless the use – (a) is a lawful use; or (b) for designated premises – complies with any requirements about the use of the premises in the designation.
  3. [15]
    The owners did not show cause, so the letter stands as conclusive proof of the unauthorised restructuring of the property to dual occupancy at a time prior to the tenancy in this case. Though a fire never occurred, the dwelling in its altered configuration at 8B Cornwall Street posed a potential safety risk for occupants in the event of fire because the wall separating the two areas did not meet regulatory specification. To comply, the wall had to meet fire rating specification and stand from foundation to roofline. Also, the door separating the two discreet areas had to be always left unlocked.  The owners could not rectify the situation unless those town planning requirements were addressed and met. The premises as such could therefore not lawfully be let or relet, or advertised for letting, except perhaps in terms of a residential tenancy agreement for rooming accommodation[11] once rendered compliant by reverting to its original approved configuration – the reversion. Compliance also required that the owners remove a stove that had been installed in the 8B kitchen.

Rooming Accommodation alternative

  1. [16]
    In respect of the potential[12] lawful use of the house at 8 Cornwall Drive for rooming accommodation, a Development Compliance Officer with the City of Gold Coast, responding separately on 20 June 2023 to a question from Mr Venz, said the following in email.

I confirm that having flatmates, up to 4 unrelated people including you, is acceptable for your premises as long as the use of the house is of a single household where all 4 people satisfy the indicators of a common household, including the following:

  • Living together on a long-term basis
  • Make common provisions for food or other essentials for living
  • Shared services bills and waste collection
  • One lease or rental agreement for the household
  • Single entry, mailbox, and address

Structural reversion

  1. [17]
    There is no doubt, on the uncontradicted oral evidence of Mr Venz, that the reversion of 8 Cornwall Drive from dual occupancy to a single dwelling occurred in or about May 2023. Council, in an email from the City of Gold Coast’s Development Compliance Officer to Mr Venz dated 20 June 2023, confirmed that it was now satisfied with the actions taken “to resolve items 2(a) and 2(b) of the Notice and reinstate the primary dwelling to a state that is consistent with the final certificate for the dwelling house additions dated 24 March 2005.” The reversion of what formerly was 8B Cornwall Drive to one single dwelling was not however what Ms Gledhill and Mr Pieragostini had contracted to rent when they signed the back-to-back leases, nor was the reversion subsequently advertised for letting as rooming accommodation which Council in its letter to Mr Venz dated 20 June 2023 explained would be a lawful use.

Impediment ascertainable – findings

  1. [18]
    I find that the impediment to lawful occupation of 8B Cornwall Drive in its separate configuration was ascertainable by enquiry of the Gold Coast City Council at any time. It ought reasonably to have been known by the owners before offering the lease, it was significant, and it continued into (but not after) May 2023 – about a month after the tenants returned vacant possession to the agent and left on 9 April 2023. Ms Gledhill and Mr Pieragostini were therefore justified in leaving when they did though, contrary to Ms Gledhill’s evidence in this regard, I find that Council did not require them to leave, it merely said that investigations and any action could take as long as December 2023 to complete.

No termination application

  1. [19]
    Ms Gledhill and Mr Pieragostini did not apply to the Tribunal to end the lease on or after 9 April 2023, as they may have done, for example – on ground of excessive hardship in being contractually liable for rent under two current leases or on some other ground permitted by the RTRAA. They did not issue a second Notice of intention to leave with ground, either. They attribute that to mis-advice of QSTARS.

Misrepresentation – finding

  1. [20]
    Implicit in offering the premises to the tenants to rent was the representation that 8B Cornwall Road was lettable in its’ own right for a residential tenancy, when in fact it was not lettable as such. Ms Gledhill and Mr Pieragostini obviously relied upon that representation in entering into the residential tenancy agreement, assuming it could be lawfully rented. I find that misrepresentation and reliance is proven.

Electrical problems – findings

  1. [21]
    Unlawful occupancy and use of 8B Cornwall Drive aside, I find that there were significant ongoing electrical problems and outages in 8B Cornwall Drive during the second fixed term of the tenancy, and that the owners breached the residential tenancy agreement in failing to ensure the continuity of electrical supply for the rent paid. They were in breach of their obligations to the tenants under sections 183(1) (Quiet enjoyment), 185(2)(c) and 185(3)(b) (Premises and inclusions in good repair) in that respect. I accept the evidence of Ms Gledhill and Mr Pieragostini that they were intermittently without electrical supply for appliances for approximately 156 hours between 22 September 2022 and January 2023. See Ms Gledhill’s email to the agent dated 13 March 2023 and the “Timeline of events” at page 128 of the attachments to Ms Gledhill’s affidavit sworn 6 June 2023.

Food loss, disruption, and inconvenience – findings

  1. [22]
    I accept the evidence of Ms Gledhill and Mr Pieragostini and find that they lost refrigerated food and experienced disruption and inconvenience because of the power outages, including loss of hot water on one occasion of prolonged outage when the pilot light for gas heated hot water went out and would not reignite, that the outages interrupted working on their online business from home resulting in them having to make up lost time afterhours.

Tripping hazard/injury – findings

  1. [23]
    Ms Gledhill’s evidence is that temporary power chords provided by the owners to connect power from other sources as an interim measure were a “mess” and a tripping hazard, causing her to trip and injure her foot – for which she received diagnostic and podiatric medical treatment at cost to her. Whilst I accept the evidence that Ms Gledhill received diagnostic and remedial medical treatment for a foot condition, I find that she has not proved on the balance of probabilities that she tripped on power chords for temporary power supply and injured herself in that way. As pointed out by the agent, Ms Gledhill’s documentary evidence establishes that she consulted a podiatrist on 20 March 2023, that she underwent ultrasound imaging on 24 March 2023, that she attended a follow up consultation that same day, and that those events occurred only after issue of the tenants’ Notice of intention to leave on 13 March 2023.
  2. [24]
    I accept the agent’s submission that there is no supporting medical report from a doctor linking the injury and treatment to the alleged cause. Mr Venz points to Ms Gledhill’s statement in an email dated 10 January 2023 saying that she “almost fell over the chords this morning” – not that she did trip and fall then. I also accept the evidence of Mr Venz in his statement that the power chords were handed to the tenant at the door to use, that they were not placed on the floor by the owners, that it was the tenants who put the power chords on the floor. In other words, the owners did not create the tripping hazard, rather the tenants’ placement of the chords on the floor did.

Internet service – findings

  1. [25]
    In oral evidence, Ms Gledhill and Mr Pieragostini said that internet service to the property was “intermittent” so it fell to them to rectify the situation by purchasing and installing plug-in Eero boosters. They claim the cost of those in compensation for breach of the lease, however I accept as more probable the evidence of Mr Venz in his statement where he points to the fact that the Eero devices were ordered by Mr Pieragostini on 25 August 2021 – approximately five weeks after the first fixed term tenancy commenced. That is inconsistent with there being no, or only intermittent, internet service, but I accept that the tenants considered that internet speed in August 2021 was insufficient for online business purposes. The issue in turn is whether a minimum internet speed was stated in the tenancy agreement.
  2. [26]
    Mr Venz says, and I accept, that the lease agreement did not specify the speed at which the internet service would be delivered, it merely states that internet service was included in the rent. He relies on a Baseline Test Report of GC Data Cabling dated 17 April 2023 (Attachment I) after disconnection of the existing “Eero” brand mesh units devices, which proves that pre-existing wi-fi signal coming from the Archer router (in the main house) to the living area of the flat provided 54.8Mbps download and 20.2Mbps upload. The reference to “flat” is obviously a reference to 8B Cornwall Drive in dual occupancy configuration at the time it was rented by Ms Gledhill and Mr Pieragostini. I accept the findings and conclusions in the Baseline Test Report of GC Data Cabling dated 17 April 2023 and find that the speed of internet to the property before installation of the Eero devices and throughout both fixed terms of the tenancy sufficed for normal use.

Other issues – findings

  1. [27]
    The evidence of Ms Gledhill and Mr Pieragostini went beyond the issues identified in their Form 16 Dispute Resolution Request to which I will come shortly. For example – they referred in evidence to allegedly unlawful camera surveillance of “our front yard” looking in the direction of the shed, to unsafe access to gas storage tanks outside the property, to faulty smoke alarm devices, and to impermissible use of the shed (8A Cornwall Road) by others as a residence. Even if those issues had been the subject of their Form 16, I would not have found for the former tenants because I am not satisfied on the balance of probabilities that the outdoor area in which direction a camera fixed on the veranda of the owners’ residence pointed was a part of the leased premises, nor am I satisfied that access to the gas tanks was in fact unsafe even though difficult to traverse, or that the smoke alarms removed by Ms Gledhill and Mr Pieragostini were in fact faulty. The evidence of Ms Gledhill concerning the smoke alarms is hearsay as to what someone else told her and carries insufficient weight to prove the allegation.
  2. [28]
    The evidence of Ms Gledhill and Mr Pieragostini about alleged impermissible use of the shed (8A Cornwall Road) by members of the family of Mr and Mrs Venz in contravention of town planning law is irrelevant to the impediment to occupation of 8B Cornwall Road and the other problems about which they did have legitimate complaint.

NURD/S

  1. [29]
    Lodgement of a Form 16 Dispute Resolution Request (DRR) and receipt of a Notice of unresolved dispute (a NURD) are essential prerequisites for Tribunal jurisdiction to adjudicate a non-urgent residential tenancy dispute.

Compensable period

  1. [30]
    The Tribunal can go back 6 months prior to the date of lodgement of a Form 16 with the Authority, but not earlier than that, to ascertain the period for which claims may be made for monies owed and compensation for lease breach of which the owners and agent were aware. That in effect is what section 419(3) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), read with sections 416 and 417 of the Act, provides. It applies to lessors as well as tenants.

Tenants Dispute Resolution Request (DRR)

  1. [31]
    Ms Gledhill and Mr Pieragostini lodged their Form 16 Dispute resolution request with the Residential Tenancies Authority on 13 March 2023 and received a NURD from the Authority dated 6 April 2023. Their Form 16 stated that the dispute was about repeated failure to provide essential services to the property, predominantly power, electricity, and hot water, together with an unwillingness to “provide fair compensation” for outages and replacement of spoiled food. The compensable period backdated 6 months from 13 March 2023 on the tenants’ Form 16 commences from 14 September 2022. The tenants’ Form 16 did not however refer to a dispute about a legal impediment to occupation of the property as a residence and, though they could have done so, the tenants did not submit a further Form 16 in that respect either.
  2. [32]
    On the other hand, Blue Fox Property Group Pty Ltd lodged a separate Form 16 Dispute Resolution Request with the Residential Tenancies Authority and received a NURD from the Authority dated 24 April 2023.

Agent’s DRR – not in evidence

  1. [33]
    The agent’s Form 16 Dispute resolution request is not in evidence and the date on which the agent lodged it with the Authority is unascertained. However, nothing turns on that. The compensable period on the available evidence, backdated six months from the date of the agent’s NURD, commenced on 25 October 2022 so all the claims made by it and the owners fall within the compensable period but whether they should succeed is another issue. Having regard to the relief sought by the owners and their agent, to which I will come shortly, I infer that the conciliable issues in the agent’s Dispute resolution request will have included a claim for break lease fee, advertising, and rent. That opened the door to conciliation of the incidental issue – impediment to occupation of 8B Cornwall Street as a residence asserted by the tenants, therefore no further Form 16 from the tenants on the point was required because it would involve duplication and have lacked utility.[13]

The Application

  1. [34]
    Blue Fox Property Group Pty Ltd commenced these Tribunal proceedings against Ms Gledhill and Mr Pieragostini in an application for minor civil dispute – residential tenancy dispute filed at Coolangatta on 28 April 2023, in which they claim a total of $9,575.17 for the following.
  1. (a)
    $8,313.87 for outstanding rent for the balance of the fixed term from 9 April 2023 to 14 July 2023.
  2. (b)
    $146.30 for repairs.
  3. (c)
    $110.00 for general cleaning.
  4. (d)
    $195.00 for oven cleaning.
  5. (e)
    $660.00 for break-lease fee.

The Counterapplication

  1. [35]
    In their Counterapplication, Ms Gledhill and Mr Pieragostini apply for an order terminating the lease, an order for return of their bond, and an order for payment of $23,090.45 in compensation by the owners. For compensation, they claim the following.
  1. (a)
    $2,615.76 for “difference in rent from new property – relocation costs due to unsafe nature of building and electrical/safety issues”.
  2. (b)
    $704.00 for “removalist costs for move to new property”.
  3. (c)
    $550 for “estimated food loss during electricity outages”.
  4. (d)
    $507.00 for “3 Eero devices to boost internet speed”.
  5. (e)
    $365.10 for “ankle injury compensation due to “mess of cords (electrical outages)”.
  6. (f)
    $2,748.30 for “work hour losses (requirement to work outside business hours to make up time for electrical outages – impact to work).
  7. (g)
    $600.00 for “electrical outages – approx. 1 week on a hourly basis”.
  8. (g)
    $15,000.00 for “general loss and suffering as a result of the Landlord/Agent’s actions”, for which no breakdown is given. Elsewhere[14] in this regard, they say the following:

Seeking compensation for general pain and suffering (sic). The Tenants have both suffered mentally and physically (sic) as a result of the above issues (sic) and believe the Agent and Landlord to be acting maliciously in their claim under 0025/23. The Agent was advised three times that the premises was (sic) unlawful and multiple times of the various safety concerns and failed to act with no care or concern as to our safety in the premises. The Tenants are requesting compensation as a result of the above issues, sustained injuries (sic), the Landlord/Agent’s negligence, misrepresentations, acting in contravention of fire safety, building, planning laws, and in contravention of the Residential Tenancies and Rooming Accommodation Act 2008.

Liability – Counterapplication

  1. [36]
    I will decide liability on the Counterapplication first because some of the findings have a bearing on the outcome of claims made in the Application.

Termination of tenancy – refused

  1. [37]
    Section 70 of the RTRAA provides that the continuation of a fixed term agreement as a periodic tenancy only occurs if (amongst other things) – (a) a notice of intention to leave has not been given;[15] and (b) the tenant “holds over.”[16] Neither was the case here, so the tenancy did not become periodic on 15 July 2023, having ended on 14 July 2023. Section 277 of the RTRAA provides for the “only” ways in which a tenancy agreement ends but does not specifically refer to a tenancy ending automatically according to the provisions of section 70. Section 277(c) at the time provided that a tenancy ends if the tenant gives notice of intention to leave under section 327 and hands over vacant possession of the premises on or before[17] the handover day for the notice. By subsequent, recent, retrospective[18] amendment[19] to rectify a legislative drafting error, “before” is “after”. In context of section 70, I interpret section 277(c) in either event to mean (and have meant) that a notice of intention to leave without ground given pursuant to section 327(1)(e)(ii) that is ineffective to end a fixed term tenancy early[20] is nevertheless, by section 327(5) of the RTRAA which authorises the giving of a NITLWOG at any time before the end of a fixed term, effective to end the lease on the (later) day of expiry of the fixed term of the lease,[21] unless of course the premises are meanwhile lawfully relet or the tenant fails to leave as intended. To interpret that section otherwise would erroneously conflate invalidity with mere ineffectiveness, and lead to unintended consequences. For example, if a NITLWOG were invalid per se, because it was ineffective to end a tenancy early, then a tenants’ departure would constitute abandonment, ending the tenancy automatically on the last day to which rent was paid as is provided by section 277(f) of the RTRAA. That clearly was not the legislature’s intention.
  2. [38]
    Though ineffective to terminate the tenancy early, on the notified handover date, I find that the NITLWOG given by Ms Gledhill and Mr Pieragostini to the owners’ agent, in combination with their actually leaving and returning the keys and vacant possession to the agent on 9 April 2023, resulted in the lease ending on the expiry of the fixed term of the tenancy agreement on 14 July 2023, the premises having not meanwhile been relet.

Rent Differential claim – allowed

  1. [39]
    I will allow the former tenants’ rent differential claim in the amount of $2,281.43 for increased rent payable under the new residential tenancy agreement for premises elsewhere but only for 96 days between 10 April 2023 to 14 July 2023 (the date on which the fixed term of the tenancy ended) both dates inclusive, less $49.99 unpaid rent for one day on 9 April 2023, that is - $2,281.43 net. The additional expenditure was reasonable, it was reasonably foreseeable, and it flowed directly from the situation where 8B Cornwall Drive Elanora could not lawfully remain let for the balance of the unexpired term of the lease once the tenants ascertained the existence of the impediment. The agent’s evidence on mitigation notwithstanding, it would be unreasonable to expect that Ms Gledhill and Mr Pieragostini should have found alternative premises at exactly the same rental in a rising rent market nine months after the second term of the tenancy of 8B Cornwall Street commenced, nor does it seem to me that there was any other exactly comparable dual occupancy opportunity available at short notice. I accept the evidence of Ms Gledhill that rentals in the area were scarce, that she and Mr Pieragostini were unable to find a comparable property in Elanora, and that they had to move elsewhere after several months of applying for properties unsuccessfully.

Removalist cost claim – allowed

  1. [40]
    I will allow the removalist cost claim of $704.00 because Ms Gledhill and Mr Pieragostini would not have taken either of the two fixed term leases offered by the owners’ agent if they had known that dual occupancy was unlawful. The removalist expense flows directly from misrepresentation of lettability. But for the misrepresentation, Ms Gledhill and Mr Pieragostini would not have taken up the tenancy at all, nor would any reasonable person in their position likely have done so either. They should therefore be reimbursed by the owners.

Food loss from electrical outages – allowed

  1. [41]
    I will allow the food loss claim, even though no underlying invoices for food purchases were produced. I accept there were the food losses referred to in the former tenants’ evidence. People do not keep invoices for day-to-day food expenditure in contemplation of possible wastage. The amount claimed does not seem unreasonable. The loss flows directly from the owners’ breach of lease in not immediately addressing and effectively having fixed the outage problems once and for all time, though I accept this was not for want of several attempts to do so. At law, any shortcomings on the part of their electrician are visited upon the owners, who carry the corresponding liability to the former tenants.

Eero internet booster expenses – not allowed

  1. [42]
    I will not allow the claim for $507.00 for internet speed boosters purchased by the former tenants and used during the tenancy, for the reasons stated earlier in this decision. They have not in any event suffered any loss because Ms Gledhill admitted in oral evidence that the devices were returned after 9 April 2023, two of the three of which she and Mr Pieragostini continue to use now. They hold the other in reserve. They have suffered no compensable loss.

Ankle injury compensation – not allowed

  1. [43]
    I will not allow the claim for $365.10 for ankle injury compensation for the reasons already given in this decision and because, properly characterised, the claim is for damages for personal injury which this Tribunal has no jurisdiction to adjudicate.[22]

Lost work hours claim – not allowed

  1. [44]
    I do not allow the claim for $2,748.30 for claimed work hours lost because, on the former tenants’ own evidence, they worked outside business hours to make up the time lost, inconvenient though I accept that will have been. They were bound to mitigate any such loss and apparently did so, completely. There is no compensable business loss claimable in that circumstance. I do not therefore need to consider foreseeability of the alleged loss and whether Ms Gledhill and Mr Pieragostini had special knowledge not known to the owners and the agent at formation of the lease for the second fixed term,[23] or whether the (then) tenants breached the contractual and statutory prohibition against use of the premises mainly for business, rather than residential, purposes.[24]

Electrical outage compensation – allowed

  1. [45]
    Though I have not allowed the claim for work hour losses, I do allow the claim by Ms Gledhill and Mr Pieragostini for $600.00 in compensation for electrical outages and inconvenience because it seems to be reasonably calculated, having regard to the interference with their quiet and peaceful enjoyment of the tenancy in circumstances where uninterrupted electricity supply by the owners was included in the rent.

General pain and suffering claim – not allowed

  1. [46]
    As with the claim for reimbursement of medical expenses associated with ankle injury, I do not allow the undissected global claim for $15,000.00 for general mental and physical pain and suffering. Characterised according to the narrative in the Counterapplication, it too falls within the realm of a claim for damages for personal injury which this Tribunal has no jurisdiction to adjudicate.
  2. [47]
    Parties to civil litigation are in any event bound by the way they state their claims and conduct their cases.[25] The Tribunal cannot advise litigants on what claims to make and how to conduct their cases.[26] Though the Tribunal is not a Court of pleading, where an undissected and unparticularised global claim ostensibly not within the Tribunal’s jurisdiction is made, it is impossible for the Tribunal to discern whether any part of a general narrative might perhaps fall within jurisdiction, as an exception. Even if within jurisdiction, a claimant must attribute to each item in a general narrative the amount claimed for compensation. Procedural fairness to the other party requires this, so the party knows the case to be met and is afforded an opportunity well before hearing to respond to it in evidence.

Liability – Application

Break-Lease fees/Rent claims – not allowed

  1. [48]
    It follows that I do not allow Mr and Mrs Venz’ claims against Ms Gledhill and Mr Pieragostini for $660.00 for break lease fee and $8,313.87 for rent for the balance of the now expired term of the tenancy agreement. Though the tenants broke the lease, they did so for good reason, having belatedly discovered that the premises could not lawfully be rented in the dual occupancy configuration and that there was a potential safety risk in the event of fire. The premises could not lawfully be advertised for reletting in that configuration. Neither was the reversion advertised for rooming accommodation. The owners breached their mitigation duty. Their loss is not recoverable from the former tenants, nor the fees for break lease and advertising. In any event, this Tribunal will not condone illegality by ordering the payment of a break lease fee and rent for premises that cannot lawfully be occupied and used for a residential tenancy.

Cleaning claims – allowed

  1. [49]
    I am satisfied on the totality of the evidence that the former tenants left 8B Cornwall Street in a somewhat less clean state than at the start of the tenancy and I therefore allow the claimed amounts of $110.00 for general cleaning and $195.00 for oven cleaning, in total $305.00. In coming to this conclusion, I accept the agent’s evidence as more convincing in preference to that of the former tenants.

Fly Screen Repair claim – the lounge window – allowed

  1. [50]
    As to the claim for 146.30 for repairs, I am satisfied on the balance of probabilities that the tenants’ cat likely caused the tear in the lounge window flyscreen, having regard to the entry/exit report annotations and the photographs produced by the owners’ agent.

Disposal

  1. [51]
    In the result, Mr Venz and Mrs Venz are jointly and severally liable to Ms Gledhill and Mr Pieragostini for compensation in the amounts of $2,281.43 for the rent differential $704.00 for removalist costs, $550.00 for food loss, and $600.00 for compensation for electrical outages, in total $4,135.43. Ms Gledhill and Mr Pieragostini are jointly and severally liable to Mr Venz and Mrs Venz for $110.00 for general cleaning, $195.00 for oven cleaning, and $146.30 for repairs, in total $451.30. Offsetting one set of liabilities against the other, Mr and Mrs Venz must pay the Ms Gledhill and Mr Pieragostini the difference of $3,684.13. The parties will bear their own cost of the filing fees for Application and Counterapplication respectively, considering that substantial amounts claimed by each side have been disallowed, and I will not order interest claimed by the former tenants in that circumstance.
  2. [52]
    The bond of $2,400.00 held by the Residential Tenancies Authority will be repaid to Ms Gledhill and Mr Pieragostini, because they have no net liability to Mr and Mrs Venz. I will dismiss the claim by the agent in the Application and the claim by the former tenants against the agent in the Counterapplication because the owners, who are primarily liable to the former tenants, are parties to the proceedings and reside locally.

Orders

  1. [53]
    The orders are set out at the beginning of this decision.

Footnotes

[1] RTRAA, s 327(1)(d).

[2] RTRAA, s 308(1).

[3] Ibid, s 327(6) read with Schedule 1 Part 2, Division 1.

[4] My italicisation for emphasis.

[5] Ibid, s 327(5).

[6] My italicisation for emphasis.

[7] RTRAA, s 327(4).

[8] Fox v Jolly (1916) 1 A.C. 1 cited with approval in Clarke v Japan Machines (Australia) Pty Ltd [1983] QSCFC 52 at page 7 and see also Barnes v Queensland National Bank Ltd (1906) 3 C.L.R. 925 at 935 referred to at page 11.

[9] Ibid.

[10] Document 3 referred to in, and attached to, the Further Response of Ms Gledhill and Mr Pieragostini filed on 20 June 2023.

[11] RTRAA, s 18(1) and (2).

[12] Italicised by me for emphasis.

[13] See Evans v Saarman [2013] QCATA 58, at [5].

[14] See page 5 of the attachment to the Counterapplication.

[15] RTRAA, s 70(1)(b)(ii).

[16] Ibid, s 70(2)(b).

[17] My italicisation for emphasis.

[18] See pages 1 and 3 of the Explanatory Notes to the Local Government Electoral and Other Legislation (Expenditure Caps) Amendment Bill 2022 (Qld) as relate to s 277 of the RTRAA and a drafting error in the Housing Legislative Amendment Act 2021 (Qld).

[19] See section 576 of the Local Government Electoral and Other Legislation (Expenditure Caps) Amendment Act 2023 (Qld).

[20] RTRAA, s 372(2), s 372(4), s 327(1)(d), s 327(6), read with the definition of minimum notice period for fixed term tenancy in Schedule 1 Part 2 Division 1 – in combination.

[21] See (then) Senior Member Peta Stilgoe OAM’s succinct analysis in Cordery v Century 21 – Investment Focus [2013] QCATA, [9].

[22] Bates v Horsnell [2011] QCATA 329, per Wilson J at [15]-[16].

[23] See Hadley & Anor v Baxendale & Ors [1854] EWHC J70.

[24] See RTRAA, s 10, and clause 21(1) of the standard terms of the tenancy.

[25] Till and Till ATF the Till Family Trust t/as Mt Cotton Truck Hire v Rose [2015] QCATA 173; Till & Anor v Rose [2016] QCA 127.

[26] Astill Legal Group Pty Ltd & Anor v Centrepoint Real Estate Pty Ltd t/as First National Centrepoint & Ors [2022] QCAT 399, [123].

Close

Editorial Notes

  • Published Case Name:

    Blue Fox Property Group Pty Ltd & Ors v Gledhill & Anor

  • Shortened Case Name:

    Blue Fox Property Group Pty Ltd v Gledhill

  • MNC:

    [2023] QCAT 349

  • Court:

    QCAT

  • Judge(s):

    Adjudicator Alan Walsh

  • Date:

    04 Sep 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Astill Legal Group Pty Ltd v Centrepoint Real Estate Pty Ltd t/as First National Centrepoint [2022] QCAT 399
2 citations
Jump To
Cite 1 - [2022] QCAT 399
Cite 2 - [2022] QCAT 399
Barns v Queensland National Bank Limited (1906) 3 CLR 925
2 citations
Jump To
Cite 1 - (1906) 3 CLR 925
Cite 2 - (1906) 3 CLR 925
Bates v Horsnell [2011] QCATA 329
2 citations
Jump To
Cite 1 - [2011] QCATA 329
Cite 2 - [2011] QCATA 329
Clarke v Japan Machines (Australia) Pty Ltd [1983] QSCFC 52
2 citations
Jump To
Cite 1 - [1983] QSCFC 52
Cite 2 - [1983] QSCFC 52
Cordery & anor v Century 21 – Investment Focus [2013] QCATA 218
1 citation
Jump To
Cite 1 - [2013] QCATA 218
Evans v Saarman [2013] QCATA 58
2 citations
Jump To
Cite 1 - [2013] QCATA 58
Cite 2 - [2013] QCATA 58
Fox v Jolly [1916] 1 AC 1
1 citation
Jump To
Cite 1 - [1916] 1 AC 1
Hadley v Baxendale [1854] EWHC J 70
2 citations
Jump To
Cite 1 - [1854] EWHC J 70
Cite 2 - [1854] EWHC J 70
Till and Till ATF The Till Family Trust t/as Mt Cotton Truck Hire v Rose [2015] QCATA 173
2 citations
Jump To
Cite 1 - [2015] QCATA 173
Cite 2 - [2015] QCATA 173
Till v Rose [2016] QCA 127
2 citations
Jump To
Cite 1 - [2016] QCA 127
Cite 2 - [2016] QCA 127

Cases Citing

Case NameFull CitationFrequency
Blue Fox Realty Group Pty Ltd v Gledhill & Anor (No 2) [2023] QCAT 3841 citation
1

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